Tribunal Criminal Tribunal for the Former Yugoslavia

Page 375

1 Thursday, 7 December 2000

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 4.10 p.m.

6 JUDGE WALD: Madam Registrar, will you call the case, please.

7 THE REGISTRAR: This is case number IT-98-34-PT, the Prosecutor

8 versus Mladen Naletilic aka Tuta and Vinko Martinovic aka Stela.

9 JUDGE WALD: Let me say good afternoon to the parties, to the

10 counsel, to the accused, to the technical staff.

11 At this juncture, I would like to ask for the appearances of

12 counsel and then I will announce to you the way in which we'll conduct the

13 proceeding. Let me start with the Prosecution.

14 MR. SCOTT: Thank you, Your Honour. Kenneth Scott appearing on

15 behalf of the Office of the Prosecutor. With me today are Douglas

16 Stringer, Vassily Poriouvaev, Roeland Bos, and Nicola Hamilton.

17 JUDGE WALD: Thank you. I think I know the counsel for the

18 accused, but for the record will you state your name and who you are

19 representing.

20 MR. KRSNIK: [Interpretation] Your Honour, my name is

21 Kresimir Krsnik. I am a member of the Croatian Bar Association. My

22 assistant is Madam Visnja Drenski Lasan, also a member of the Croatian Bar

23 Association.

24 MR. SERIC: [Interpretation] Good day, Your Honour. My name is

25 Branko Seric. I'm a member of the Croatian Bar Association. Next to me

Page 376

1 is my colleague Zelimir Par, a lawyer from Zagreb.

2 JUDGE WALD: Thank you. We are going to conduct our proceeding in

3 basically two parts this afternoon. This is scheduled to be a Pre-Trial

4 Conference for the entire case. However, there are some loose ends we

5 have as a result of the various pleadings that have been filed and a few

6 things to check up on to make sure that we have come to that stage. So I

7 as the Pre-Trial Judge will go through some of these questions which are

8 still open after the latest round of pleadings.

9 When I have completed that, we will take the pleas of the two

10 defendants to the amended indictment and after that we will have a short

11 pause and my two colleagues on the bench will join me for a more formal

12 Pre-Trial Conference in which, for the record, we will review the

13 proceedings and the progress of the case up to the present point over the

14 past year.

15 So we will get started on the first part which is essentially a

16 catching up with loose ends that were left from the various pleadings.

17 I will start with reminding you that our last Status Conference

18 was on the 4th of September, and I want to check up and make sure that

19 everything that was slated to be done since then has indeed been done. I

20 hope we can get through this part quickly because it is for the most part

21 routine, although I will take up a few of the issues or challenges raised

22 by the Defence to some of the pre-trial submissions of the Prosecution.

23 Now, the first thing is witness statements, and at the last Status

24 Conference the Prosecutor indicated that there were still 11 statements to

25 be translated and disclosed to the defendants by the end of September.

Page 377

1 Has that been done?

2 MR. PORIOUVAEV: Yes, Your Honour.

3 THE INTERPRETER: Microphone, sir. Microphone to the counsel,

4 please.

5 JUDGE WALD: Microphone.

6 MR. PORIOUVAEV: Yes. By today we have disclosed 334 witness

7 statements in B/S/C including those 11 witness statements we were talking

8 about at the previous Status Conference. But today we are disclosing

9 12 more witness statements and all of them are so far in English because

10 these new witness statements were received quite recently during our

11 missions in November and December. As soon as the translations are ready,

12 I think that they will be ready somewhere by the end of January because of

13 well-known problems with Christmas and the New Year holidays, so these

14 witness statements will also be disclosed. Two witness statements are of

15 new witnesses and the rest some supplementary statements of our witnesses

16 who were interviewed prior.

17 Also, we have nine witness statements received by our

18 investigators in Spain, nine witness statements. They are still being

19 processed, and as soon as they are translated into B/C/S, they also will

20 be disclosed. I think that all that will be done somewhere by the end of

21 January. As for the witness statements, that's all.

22 Now we have disclosed everything we have in our domain relevant to

23 the case, with the exception, of course, of these new witness statements.

24 JUDGE WALD: Now, is it your estimate, barring unexpected or

25 unanticipated circumstances, that you, at the end of January, when this

Page 378

1 latest batch of statements that you've discussed have been transmitted,

2 that that, in effect, will be the end of the witness disclosure? You will

3 have disclosed all of the witness statements at this point that you are

4 aware of; is that right?

5 MR. PORIOUVAEV: Yes, yes. I think that we will complete our

6 disclosure by that time, at least all that we have in our house now.

7 JUDGE WALD: Thank you. Do you, Mr. Krsnik, Mr. Seric --

8 Mr. Krsnik first and then Mr. Seric, do you have any reaction to that? Is

9 that satisfactory to you?

10 MR. KRSNIK: [Interpretation] No, of course not, Your Honour,

11 because we have some objections in principle to the way in which our

12 learned friends from the OTP have presented their witnesses and evidence.

13 To put it as briefly as possible, Your Honour, I will only read

14 you a short note which was received by the Defence from the Prosecution

15 with respect to witnesses. This includes persons who have said that they

16 would refuse to testify. Then, pursuant to Rule 66(A), certain witness

17 statements have been disclosed so that the Prosecutor will be able to call

18 them if they subsequently decide to testify. Also, the Prosecution

19 retains the right to call new witnesses who will make statements after the

20 list was submitted.

21 What I wish to say is: What my colleague said is correct. We

22 have received 330 witness statements. The Defence, however, does not know

23 how soon they will testify, in what order they will testify, when new

24 witnesses and if new witnesses will be introduced, and that is my

25 objection in principle, Your Honour.

Page 379

1 JUDGE WALD: Well, I'll listen to Mr. Seric.

2 THE INTERPRETER: Your microphone.

3 MR. SERIC: [Interpretation] Your Honour, I partly agree with my

4 learned friends from the Prosecution. It is correct that we have received

5 the statements mentioned; however, it has already happened several times

6 that they said that this was all and then we received more statements, and

7 now I hear we will receive yet more statements by the end of January. We

8 would like to know when we shall see the end of this and when we shall

9 really be able to see what it is that the Prosecution has at its disposal

10 so that we will know how to deal with this and how to work in the

11 interests of justice and in the interests of our clients.

12 JUDGE WALD: Well, it strikes me that, one, the representative of

13 the Prosecutor has testified, in answer to my question, that so far as

14 they know now, they will have disclosed all the relevant statements for

15 witnesses they intend to call by the end of January.

16 Now, as you well know, in trials unexpected things happen and

17 occasionally it is necessary, as new material comes to the fore, to change

18 a witness list. But my experience here is that if that should happen

19 afterwards, they would, indeed, inform the Court of that, or once a trial

20 date has been set, inform the Court if they were planning to change the

21 witness list or if they were planning to add new witnesses and the reasons

22 therefore.

23 I think the Prosecutor is well aware that a trial is not an

24 evolving work-in-progress that you change every time something new comes.

25 But I also understand we have to have a certain degree of flexibility when

Page 380

1 unexpected things happen. So I would expect that they have now told you

2 that, to the best of their knowledge, they will have completed the

3 necessary disclosure of witness statements by the end of January, and I'm

4 willing to abide by their good faith in that. If something happens

5 subsequently, it will have to be dealt with by the Trial Chamber.

6 As far as having too many witness statements, you know, you may be

7 complaining of an overabundance of efforts by the Prosecutor. But let me

8 ask, replying to your problem, at what point the Prosecutor at this point,

9 barring unforeseen happenings, at what point the Prosecutor thinks it will

10 have a relatively final list of witnesses that it intends to call.

11 Mr. Scott.

12 MR. SCOTT: Your Honour, I think that it's fair to say that I

13 agree with my co-counsel in that I think by the end of January we will be

14 in fairly firm shape.

15 As Your Honour just indicated, these cases in the Tribunal, even

16 perhaps more than cases at home, have a way of continually generating new

17 material to some extent, and as you say, we have to allow for that

18 possibility. But I have no reason to think that the volume or nature of

19 the witness statements will change dramatically after the end of January.

20 Certainly, as you have said, if there are material new

21 developments, they would be disclosed as soon as possible, and any

22 necessary leave of the Court would certainly be sought.

23 JUDGE WALD: All right. Let me move on, then, to the expert

24 reports.

25 Now, you indicated, the Prosecutor, at the last Status Conference,

Page 381

1 that you would be filing an autopsy expert report, a report on the

2 destruction of religious and cultural institutions, and an international

3 law expert report. You said these reports would be filed with the Trial

4 Chamber as soon as a date for trial is set, which of course has not

5 happened yet.

6 Do you have anything further to add to that?

7 MR. SCOTT: I'll defer to Mr. Poriouvaev on that. I think the

8 answer is no.

9 MR. PORIOUVAEV: We have nothing new to add. All these documents

10 have been disclosed to the Defence. Now we have requested the French

11 translation of these documents, and as soon as we have the date for the

12 trial, we'll file all these documents with the Trial Chamber.

13 JUDGE WALD: All right.

14 Let me hear from the Defence if they are intending to call any

15 expert witnesses that they know about at the present time.

16 MR. KRSNIK: [Interpretation] Of course, Your Honour, we shall call

17 some expert witnesses. I cannot say now who they will be or what they

18 will testify about, but we shall call some expert witnesses.

19 JUDGE WALD: You're familiar, of course, with Rule 94 bis, which

20 says that you have to disclose it to the opposing party as early as

21 possible and file it with the Trial Chamber 21 days in advance of the

22 testimony. All right. I don't think we can go any further with that.

23 Now, I think there are a few matters outstanding from the many

24 motions, replies, and decisions that the Prosecutor filed along with his

25 pre-trial brief. Now, let me take up the depositions on the first case.

Page 382

1 The Trial Chamber did grant the Prosecution's motion to take

2 depositions. Now, I understand that decision has been appealed by both of

3 the accused and of course we will wait and see what the Appeals Chamber

4 has to say about that. Subject to that, however, should the Trial Court's

5 decision be upheld in whole or perhaps even in part there will be matters

6 regarding the procedure for the depositions to be worked out, including

7 the location, whether they're held in open or closed session, the presence

8 of the accused.

9 We gave in our order, in our decision, rather, an instruction to

10 the Prosecutor to give us an estimate of the time required and also the

11 grounds upon which it thought it needed the depositions in closed

12 session. We asked the Defence an estimate of the time that it would

13 require for cross-examination.

14 Now, all of these will have to be negotiated if and when the

15 Appeals Chamber upholds the Trial Court's decision. So I assume when we

16 hear from the Appeals Chamber that those negotiations will begin, assuming

17 that it does not agree completely with the Defence counsel that no such

18 thing could be held.

19 I want to bring up and ask the Prosecution's view on one thing

20 that was raised by the Defence counsel before us, and that was the accused

21 Martinovic had argued that he doesn't know the majority of the witnesses

22 who would be deposed by name and surname, doesn't have any idea who they

23 are until he sees them personally, this being an argument that he says

24 would require his presence at the deposition. I'd just like to hear the

25 Prosecutor's answer to that argument or views on that argument should they

Page 383

1 become relevant.

2 MR. SCOTT: May it please the Court. Your Honour, I think we

3 would have to look at that issue based on a witness -- to some extent on a

4 witness-by-witness basis depending on the protective measures that might

5 be required and how to approach a different witness.

6 I think in general terms, as Your Honour knows, even with

7 protective measures the Defence is entitled certainly to know the

8 witnesses against them. We understand that and that's certainly a given.

9 I think there should be ways, however, of accomplishing that

10 without necessarily requiring the defendant's presence. Other steps could

11 be taken to meet the Defence rights while not necessarily having the

12 defendant himself present at a deposition. So I would think we would try

13 to find some way to accommodate those where it would need be.

14 JUDGE WALD: Let me just clarify one thing. Is your opposition to

15 having the accused present based upon the location that if it were in

16 Sarajevo the security problems of transportation would be too great? If

17 it ended up being located here you wouldn't have any opposition to their

18 being present?

19 MR. SCOTT: The primary reason -- Your Honour is exactly right.

20 The primary reason is one of location. It's a function of location and

21 the transport --

22 JUDGE WALD: And that's subject to negotiation --

23 MR. SCOTT: Absolutely.

24 JUDGE WALD: -- if indeed the Appellate Court approves the process

25 entirely. Okay.

Page 384

1 MR. SCOTT: Here in The Hague it would only be a different issue

2 and only, I would think, under very unusual circumstances.

3 JUDGE WALD: Okay. Thank you. Let me move on to the Defence.

4 There were some Defence objections raised to the Prosecution's motion for

5 Rule 65 ter filings.

6 The Prosecutor had indicated that some measures such as private

7 sessions, face distortion, videolink might be required for some witnesses

8 and the accused Naletilic objected to the use of face distortion on the

9 grounds the identity of the witnesses, their year of birth was publicly

10 known or obvious from other details. He also objected to witnesses giving

11 evidence by way of videolink.

12 I only want to know if the Prosecutor has any view on these

13 objections before the Trial Chamber rules on them in due time.

14 MR. SCOTT: We do not agree with the objections, Your Honour,

15 again in general. Again, similar to the last question. If there is some

16 legitimate reason that steps have to be taken to protect the witness we

17 will seek to do that with the Chamber's approval. If there is some reason

18 on a specific basis that the Defence needs to identify some person beyond

19 the normal means, I suppose we can explore. But I disagree with the

20 notion that just because someone's name and birth date may be known that

21 is the same thing as disclosing someone's facial image, because we all

22 live in a visual video world and the fact that someone's face is displayed

23 publicly in the media for better or worse has a much more disclosing

24 effect than some very basic biographical information.

25 JUDGE WALD: I want to clarify one other thing, Mr. Scott. You

Page 385

1 suggested in your reply that the requirements for protective measures for

2 particular witnesses might change and that you would keep the Defence and

3 the Chamber updated on the status of witness requests for protective

4 measures. So do I take that to mean at this point in time you are not

5 making specific requests for specific measures for specific witnesses

6 until you know whether, one, those witnesses are definitely coming; and

7 two, whether they're requiring those. So in that sense it would be

8 premature for us to rule and the Defence's objections are of a more

9 general nature to alert us to their objections.

10 MR. SCOTT: That's exactly right, Your Honour. I think the OTP

11 practice, certainly in the cases that I've been involved in, is to always

12 seek, if I can put it this way, the least amount of protection necessary.

13 So if we have earlier said a witness wants closed session but on further

14 reflection or once the witness comes to The Hague they say well, video or

15 facial image distortion is enough, then typically we've reduced the level

16 of protection we've asked for. So, yes, Your Honour is correct.

17 JUDGE WALD: Do you have anything you to add, either Mr. Krsnik or

18 Mr. Seric, on this? I don't think that we're in a position to rule on

19 specific witnesses right now, but if you have anything more to say on your

20 general objections, I'm happy to hear it. Go ahead.

21 MR. KRSNIK: [Interpretation] Your Honour, as you yourself have

22 said, excuse me, I think it is premature because we do not know what

23 witnesses will -- this will refer to but, you know from previous Status

24 Conferences and our preliminary motions what the standpoint of the Defence

25 is. In the interests of justice and in the interests of the Defence, in

Page 386

1 principle, everything proposed by the Prosecution is important for the

2 Defence, otherwise, the Prosecution would not be submitting it.

3 Therefore, we want this to take place in the courtroom, in The Hague, and

4 in the presence of our clients, and I think this is the only way in which

5 justice will be served because our clients are still innocent until proved

6 guilty.

7 JUDGE WALD: Fine. I'm cognisant of your general objections and

8 we'll meet these problems as they arise.

9 Now, in the Prosecutor's exhibits -- I'm sorry. I apologise,

10 Mr. Seric. Go ahead.

11 MR. SERIC: [Interpretation] Your Honour, I would like to add that

12 it seems to me there is a certain misunderstanding between the Defence of

13 Vinko Martinovic and the Prosecution. Our request that Vinko Martinovic

14 be present at the questioning of witnesses has nothing to do with the

15 protection of the witnesses. We insist on his right to see who the

16 witnesses are.

17 JUDGE WALD: I understand that. We're dealing with two separate

18 issues, and I'm sorry if we didn't indicate the demarcation. That is a

19 separate issue. I fully understand your general objection to his not

20 being able to be present at all.

21 I'm reminded here of some correction, but I have a problem finding

22 it on the transcript.

23 THE REGISTRAR: It's page 11, line 6. 16:37:57.

24 JUDGE WALD: I think you better show it to me. I can't find it.

25 THE REGISTRAR: Do you have -- oh, it's gone now.

Page 387

1 JUDGE WALD: Why don't you tell me or write it. Yes.

2 I fully understand your general objection to non-presence at all

3 depositions. Go ahead.

4 MR. SERIC: [Interpretation] I apologise, Your Honour. You have

5 told the Prosecution just awhile ago that they should put -- state their

6 position, and we have not heard this.

7 JUDGE WALD: I thought that it was clear from Mr. Scott's answer

8 that their position as to whether or not they would agree to or oppose the

9 presence of your client at all depositions would depend, one, on the

10 location; and two, his objection that he didn't know, he wasn't able to

11 recognise by the name various of the witnesses, that Mr. Scott thought, as

12 far as the Prosecution's point of view went, that if it were at a

13 different location that there might be other ways to apprise him of enough

14 information so that he could assist in the conduct of the depositions

15 without actually being there. I'm talking now about the Prosecution's

16 position. That's my understanding.

17 If you want to add to that, you may.

18 MR. SCOTT: No, Your Honour. That's exactly right. That's what

19 we said.

20 JUDGE WALD: So it's a relative position depending upon location

21 and I guess who the witnesses are and whether there are other ways. Go

22 ahead.

23 MR. SERIC: [Interpretation] Your Honour, may I then conclude that

24 it is purely a security issue? I don't know who should respond to that.

25 JUDGE WALD: I think Mr. Scott should respond to that.

Page 388

1 MR. SCOTT: Your Honour, basically our point is --

2 THE INTERPRETER: Microphone to the counsel, please.

3 JUDGE WALD: Microphone.

4 MR. SCOTT: Sorry. My apology. The biggest single factor is the

5 transportation and to that extent a security issue. Potentially the great

6 value of the depositions is to shorten the amount of time it will take the

7 Chamber and the parties to try the case here in the courtroom. Part of

8 that would be facilitated if we could do it away from The Hague. If we

9 have to take all of the depositions here at The Hague, it's theoretically

10 possible but I would submit it becomes much less attractive as an option.

11 We might as well, except for the Chamber's time which is significant and

12 very important -- an argument could be made we might as well bring them

13 into the courtroom live because they all have to travel to The Hague, all

14 the arrangements have to be made, et cetera, et cetera. It is primarily a

15 transportation and security issue.

16 On the other hand, when we get down to individual witnesses on a

17 case-by-case basis, and that's why it's difficult, frankly, to talk about

18 it in the abstract beyond what we've already done, there may be individual

19 situations where a witness would find it -- depending on the exact

20 setting, it's different than being in a courtroom, a particular fragile

21 witness might find it very difficult to sit in a small room with one of

22 the defendants in a particular circumstance.

23 There may be issues where -- frankly, in terms of the

24 identification, there are probably witnesses that neither of these

25 defendants have ever met in their lives, who were probably the victims

Page 389

1 that they have never met. And seeing -- frankly, seeing them in person

2 would not add any information to what they already have because they

3 wouldn't know them if they ran into them on the street, if I can say it

4 that way. So I think that issue is potentially a bit artificial.

5 But having said that, the Prosecution is completely mindful of

6 Defence rights. We will have to forecast all of these steps at such time

7 as the appeal issues are resolved, and we'll take those steps.

8 JUDGE WALD: All right. I think we have the position stated

9 clearly, and I don't think there would be any point in trying to make a

10 decision on that now while the appeal is pending. Once the appeal comes

11 back and if negotiations proceed subsequently, then this will certainly be

12 a primary issue to be decided.

13 Now, in the Prosecutor's -- I'm moving now to a separate point.

14 In the Prosecutor's list of exhibits, there were two which were objected

15 to or at least questioned by the accused. One is item 7 of the

16 Prosecutor's list of exhibits, which is videotaped evidence of the

17 questioning of Ivan Andabak. Basically, Mr. Naletilic's objection is:

18 How can a videotape be submitted directly? Why doesn't the witness have

19 to be called directly, and is he going to be called? Mr. Martinovic also

20 objects to this, I think, basically, on much the same grounds, that he

21 should be called in person, not a videotape, because the videotape would

22 deny him his right to cross-examine.

23 So my basic clarification question to the Prosecution on this is

24 on what grounds are you suggesting that the videotape could come in

25 standing alone, as it were, if the witness -- you said you may offer the

Page 390

1 videotape, and I don't know whether that's definite enough and I don't

2 know whether you plan to call this gentleman as a witness or not. And if

3 not, why do you think -- on what ground do you think you can let the

4 videotape in? Okay.

5 MR. SCOTT: Your Honour, I think there's basically a

6 misunderstanding on the issue.


8 MR. SCOTT: On the 28th of November, we sent counsel -- both

9 counsel a letter. We disclosed -- the tape has been turned over. It is

10 being approached primarily as a disclosure issue not a trial presentation

11 issue. The disclosure has been completely met, even though we're not

12 sure, frankly, it was required. But we were happy to do so and we did

13 that.

14 We do not anticipate calling Mr. Andabak as a witness.

15 JUDGE WALD: Okay.

16 MR. SCOTT: That seems to have been a misconception that has been

17 developed and has continued over time. We have never stated any present

18 intent to call him. Again, circumstances might change, but at this

19 moment, we don't anticipate calling him by either video or live.

20 JUDGE WALD: Oh, so if I understand you, because I may have also

21 misunderstood as well, you're saying that this was out of the goodness of

22 your heart in disclosure, but --

23 MR. SCOTT: Well, basically.

24 JUDGE WALD: -- like the 330 statements. But at the present time,

25 you don't have any definite intent to either put in the video by itself or

Page 391

1 to call him as a witness; is that correct?

2 MR. SCOTT: That's correct, Your Honour.

3 JUDGE WALD: Why was it in the list of exhibits?

4 MR. SCOTT: Because I think in the -- Your Honour will note from

5 our common home jurisdiction that often people list things kind of just in

6 case --

7 JUDGE WALD: It's very dangerous in this Tribunal, Mr. Scott, I

8 have to tell you, to list anything you don't have to.

9 MR. SCOTT: That's true too. That's the other side of the coin.

10 Sometimes it's more dangerous not to list something on the chance that it

11 might come up in the future and, therefore, you list everything. But as

12 Your Honour just pointed out, sometimes the opposite is true.

13 I apologise if there was confusion about it, but at this juncture,

14 we do not have an intention to call him.

15 JUDGE WALD: Thank you. All right. I think that should be --

16 Do you have anything you wish to add to that, Mr. Krsnik and

17 Mr. Seric? I'm sorry. I'm mixing up my Defence.

18 MR. KRSNIK: [Interpretation] Your Honour, I'm truly surprised.

19 You will recall that at about three Status Conferences, I mentioned the

20 name of Mr. Ivan Andabak. You will recall that at that point the

21 Prosecutor asked that his name even be redacted from the transcript. Then

22 Mr. Andabak was called into the office in Zagreb where he would be

23 apparently accused and he would be arrested.

24 I have to ask for a clarification after this comment by

25 Mr. Scott --

Page 392

1 JUDGE WALD: What clarification?

2 MR. KRSNIK: [Interpretation] If I can just finish.

3 He was brought in as an accused person and he was questioned, and

4 now Mr. Scott is telling us that he is not going to call him, that he is

5 going to use the videotape --

6 JUDGE WALD: No, no, no, he didn't say that. My understanding is

7 that he's not going to use the videotape or call him, in which case he's

8 irrelevant to this proceeding unless, you know, he comes up under some

9 form of the Defence case.

10 MR. KRSNIK: [Interpretation] Then I would ask a different

11 question. Is he then going to call him in as the accused? In other

12 words, is he going to amend the indictment? Otherwise, why not just

13 simply delete him from the witness list?

14 JUDGE WALD: He's not on the witness list, he was on the exhibit

15 list and I asked him -- I asked Mr. Scott why and he said it was some form

16 of caution. I understand his present notion to be he will not -- it will

17 not be an exhibit. So if he's out of the case at this juncture, he's out

18 of the case, okay?

19 MR. KRSNIK: [Interpretation] Thank you, yes.

20 JUDGE WALD: All right. The second -- go ahead.

21 MR. KRSNIK: [Interpretation] I don't want to take too much time.

22 In other words, the Defence can expect that this exhibit would be removed

23 from the list of exhibits; is that correct?

24 JUDGE WALD: Is that my understanding?

25 MR. SCOTT: That's the practical effect, Your Honour.

Page 393

1 JUDGE WALD: All right.

2 Now, Mr. Seric, do you have anything to add? Although I think

3 everything has been said.

4 MR. SERIC: [Interpretation] Thank you, Your Honour. Nothing to

5 add.

6 JUDGE WALD: Now, the second item is the diary of the HVO soldier,

7 Alodz Rados, item 20 of the list of exhibits, which is identified as the

8 diary of an HVO soldier. Both Mr. Naletilic and Mr. Martinovic object to

9 this on very much the same grounds, that he's alive and should be called

10 directly and not just his diary put in.

11 My question which surmounts even that is: I'm not clear from the

12 description what the nature of the diary is. It could be two different

13 things: It could be a subjective diary like you and I might keep or it

14 could be one of these war log type things which is more like a regular

15 course of business, where somebody keeps a list of all the activities that

16 are going on in a particular unit or battalion.

17 It was not clear to me what it was and it could make a difference,

18 I think. So you might give us an explanation of what it is and why you

19 think it's admissible as an exhibit.

20 MR. SCOTT: Yes, Your Honour. I'll let Mr. Stringer deal with

21 that in more detail. But in general, it kind of falls -- it falls a bit

22 under the same heading as the videotape. It was, again, produced out of

23 an abundance of caution. What we have -- let me just state generally

24 because perhaps this underlies some of the confusion in some of the

25 exchange of correspondence with counsel.

Page 394

1 As the Chamber -- as you know, Your Honour, there is an ongoing

2 tension, if you will, in disclosure rules -- in the discovery in these

3 proceedings and other proceedings, and that is whether the Defence makes a

4 decision to ask to seek 66(B) discovery.

5 JUDGE WALD: Right.

6 MR. SCOTT: It is our experience in other cases and now this case

7 that there is an informed, if you will, a deliberate decision and, if I

8 may say, a tactical decision by the Defence, which it is their right to do

9 if that's the way they want to play it, not to seek 66(B) discovery,

10 apparently for the purposes of not triggering reciprocal disclosure, of

11 which the Prosecution has not received to date. We have not received any

12 disclosures from the Defence or virtually any agreements.

13 However, what we have done and what's reflected concerning both

14 the videotape that was the issue a moment ago and concerning the -- now

15 the diary is simply, if you will, even though not required, to make more

16 disclosure than may be required partly out of an abundance of fairness and

17 partly out of an effort that we think -- that perhaps if we continue doing

18 so we will eventually provoke some cooperation from the other side as

19 well.

20 Mr. Stringer can address the particulars.

21 MR. STRINGER: Good afternoon, Your Honour.

22 The diary of Mr. Rados, he was an HVO soldier. The diary was

23 captured by members of the Bosnian Muslim army. The diary has been

24 disclosed to the Defence. Mr. Scott's right and I am, I guess, the

25 culpable party or the responsible party, it's probably my -- I am the one

Page 395

1 who included several items on the exhibit list just to be cautious, and

2 this is one of those. Because it's possible that, although we don't

3 intend to offer the diary into evidence, it's possible that it could

4 become of relevance at some point during the trial for whatever purpose,

5 and so for that reason, items like that we tend to put on the exhibit list

6 just so that they are noted and are disclosed and their existence is

7 disclosed to everyone well in advance. But we don't intend to call

8 Mr. Rados to testify; we don't intend to offer the diary into evidence.

9 Your Honour, Mr. Scott sent a letter on the 28th of November to

10 Defence counsel. We intended to send a copy of this to Mr. Fourmy to

11 notify the Trial Chamber. Evidently, we failed to do it, or at least to

12 get that to Mr. Fourmy, because in the letter, what we've done is to

13 inform counsel of the positions we're now informing the Trial Chamber

14 about, which is that we don't intend to call Mr. Andabak or offer his

15 videotape; we don't intend to call Rados or to offer the diary.

16 And then, in fact, we've gone on to inform them that we are

17 disclosing to them, today in fact, a series of death certificates and

18 other documents that relate to the deaths of a number of individuals who

19 are referenced in the indictment. So although we don't believe, again,

20 that we have an obligation to do this because there's been no request for

21 discovery, in an effort to, perhaps, get agreement as to their

22 authenticity or admissibility, these are items which we've elected to

23 disclose voluntarily to the Defence and we're doing that now.

24 JUDGE WALD: Fine. While you're on your feet, you led me into the

25 next item which I will give. Mr. Naletilic and Mr. Martinovic had argued

Page 396

1 that some of these items, and it may be the same one, item 21, documents

2 relating to the death of Harmandzic and the autopsy of his body, and

3 photographs and death certificates for Aziz Colakovic, Hamdija Colakovic,

4 and Enis Pajo, also dealing with deaths, should be disclosed to the

5 Defence prior to the commencement of the trial. Are some of these the

6 same ones you've just referred to?

7 MR. STRINGER: Those are the very items which are being

8 disclosed.

9 JUDGE WALD: So they are being disclosed. So I think I'll just

10 skip over that item. If there's anything left after the disclosures that

11 is still the source of complaint, you can submit it by way of a written

12 request.

13 Okay. Now, this brings me to two other items. One is the length

14 of the trial. As you know, in the Rules of the Tribunal, Rule 73(B) and

15 (C) suggest that the Trial Chamber, which will be with us en masse in a

16 little while, may call upon the Prosecutor to reduce either the number of

17 witnesses or the length of time.

18 Now, in this case, I could call upon you to do so and I will make

19 a few statements. I understand the fact that we have two appeals which

20 are on hold at least until the appeal comes down, but I will tell you a

21 few things.

22 Again, from the Prosecutor's list of witnesses, I made a little

23 chart which suggested that -- and I understand witnesses are overlapping

24 and that one witness may testify to several different items. But it does

25 appear that about 97 witnesses will give background evidence; 93 will talk

Page 397

1 about superior authority; 82, about general allegations; 93, for Count 1;

2 67 for Counts 2 to 5; 16 for Counts 6 to 7; 15 for Count 8; 36 for Count

3 9; 34 for Counts 10 to 12; 12 for Counts 13 to 17; 16 for --

4 THE INTERPRETER: Could it be read a bit more slowly for the

5 interpreters, please. Thank you.

6 JUDGE WALD: 9 for Counts 19 to 20; 23 for Count 21; 8 for

7 Count 22.

8 I realise the overlapping nature, but I think we should aim at --

9 you told me earlier would you try -- you thought it could be reduced to

10 60 to 70 witnesses, I think. I'm wondering if you can't bring that down

11 to approximately 50 so that we could have at least as an aim a

12 ten-week trial, approximately 50 days, ten weeks for the Prosecution and

13 ten weeks, of course, for the Defence, which would still give us a several

14 month trial, but I know the Prosecutor -- your Prosecutor boss has

15 emphasised to us many times how necessary it is for us to move along, to

16 get these trials done in a reasonable amount of time, and it does strike

17 me that I hope over the ensuing months we may call upon, which is the

18 phrase in the Rule, to see if you can't bring that number down to

19 somewhere in the vicinity of 50. That would be -- I've consulted with my

20 colleagues and I think they're in agreement with that.

21 I would also like to be candid with you about the likely starting

22 time for the trial. I was perhaps a bit optimistic on the last Status

23 Conference when I suggest that if everything went fine, we might be able

24 to, after of the beginning the year, at least, be able to assess when the

25 trial could begin. Well, I think our present trials in a few cases have

Page 398

1 proved to be required to last a bit longer. We have two of them.

2 I am assured by the President of the Chamber that we should be

3 able to tell you in March when the trial will start. That doesn't mean

4 the trial will start in March. It means we says we should able to tell

5 you when the trial will start in March.

6 As you know, the Tribunal has been fortunate. It has been granted

7 a number of potential ad litem Judges who may come to help us to ease our

8 burden but they won't be here until the second half of the year, but we

9 should be able to give you a trial date hopefully in March. I can't go

10 beyond that.

11 I don't know if there is a comment or any reaction that anybody

12 wants to make to that.

13 Now, the second part which I would like of the proceedings I'd

14 like to get to deals with the amendment of Count 5 of the indictment.

15 I understand there has been some misunderstanding or maybe not

16 misunderstanding as to the receipt of the indictment, of the amended

17 indictment. Is that by both defendants or only by Mr. Naletilic?

18 MR. KRSNIK: [Interpretation] It refers to both of the accused but

19 I'm going to talk about my own client.

20 My client has not received a new amended indictment and I only

21 received a copy today. I picked it up from my law firm. We arrived in

22 The Hague yesterday. We spent the day in the detention unit. We just

23 picked up the amended indictment.

24 This is a surprise to my client. It may not be a surprise to the

25 Prosecution given the order but it is to my client.

Page 399

1 JUDGE WALD: I have a little difficulty, I'll be frank with you,

2 Mr. Krsnik, in understanding your surprise in the sense that the

3 Prosecutor filed his motion of intention to plead for an amendment to the

4 indictment back in October. Now, as I recall, both you and Mr. Seric

5 filed very prompt and very helpful, if not ultimately successful, replies

6 which suggested that you knew what the Prosecution intended to do. You

7 gave us your reasons for opposing it. We ruled on that several weeks ago

8 and in the order in which we ruled on that we said that we were actually

9 giving you the benefit of the doubt in saying that by just adding this one

10 new reference to Count 5 there was a potential new charge there, although

11 very closely related to the older charges, to which we would give you the

12 full freedom to plead but that that would take place at this particular

13 Pre-Trial Conference. Now, did you not communicate that to your client?

14 MR. KRSNIK: [Interpretation] Everything that you have said, Your

15 Honour, is correct. However, there are some new circumstances which I

16 need to bring to light.

17 We only received the ruling last week. I was not in a position to

18 discuss this ruling with the client until yesterday. I had not known that

19 the -- it was sitting there waiting for me because I went straight to the

20 Detention Unit.

21 Of course he has the right pursuant to Article 3 to receive it in

22 his own language and also he wants to see it. He wants to talk about it,

23 discuss it. I just wanted to point out the situation to the Trial

24 Chamber. My client simply does not want to enter any pleas before having

25 had an opportunity to discuss this new charge with me and this I'm

Page 400

1 relating to you as a desire expressed by my client.

2 JUDGE WALD: Mr. Seric.

3 MR. SERIC: [Interpretation] Thank you, Your Honour. We have a

4 somewhat similar position but with some differences. It is true that our

5 client also did not receive the amended indictment neither in the English

6 language, the working language of the Tribunal, or in his mother tongue.

7 However, he is prepared today to enter a plea on this amended indictment.

8 JUDGE WALD: Thank you, Mr. Seric.

9 As I'm sure you know, Mr. Krsnik, the only change to the

10 indictment is the one which was signalled in the original motion of the

11 Prosecution. It namely adds a new reference to Article 52, whereas

12 previously there had only been references to 49 and 50, all dealing with

13 various facets of the alleged unlawful labour.

14 Now, far be it for me to attempt to deprive the accused of any of

15 his rights, but I have to be frank with you, the most that this is going

16 to entail is that you will just bring him back for -- because I'm assuming

17 he's not going to plead guilty to it, and so I'm assuming that then he

18 will just have to be brought back before me sometime in January to make

19 the plea.

20 If that's something that you intend to insist upon, then I'm not

21 going to, you know, deprive of you that right, but to read it is simply to

22 see another figure in Count 5 which just says Article 52 in addition to

23 Articles 49, 50, and 51. And I will say I appreciate very much,

24 Mr. Seric, you and your client's accommodation to the practical here, and

25 we will take your plea.

Page 401

1 Go ahead, Mr. Krsnik.

2 MR. KRSNIK: [Interpretation] Your Honour, I know that sometimes

3 you don't have to take the argument of the lawyer, but I have to tell you

4 that I am bound by my client's instructions. My client certainly has

5 rights and one of these rights is that he wants to first discuss this new

6 charge with me. These are not my instructions. This comes from my

7 client, and I hope that Your Honour will understand my position.

8 I also would like to use the opportunity that I am also going to

9 file preliminary motions regarding Articles 50(A) and (B), and so far my

10 client has not been charged with anything relating to Article 52 of the

11 Geneva Conventions.

12 JUDGE WALD: I'm sorry. I'm not understanding what you just said

13 at the end. I understand the point about your instructions from your

14 client, but when this new count or new charge, whatever, which simply adds

15 Article 52 to what was the former count to which your client has already

16 pleaded guilty, then the Rules of the Tribunal would indeed give him

17 30 days in which to file, but only as to the new charge. Only as to the

18 new charge. So, therefore, it would be only as to any objection you have

19 to Article 52, not to the part of the charges that he has already pled

20 guilty to.

21 So in that case, we will fix a date very early in January, and I

22 will come myself and take the plea of your client.

23 But meanwhile, Mr. Seric, if you'd like to go ahead and if your

24 client would like to plead now, the Court would be very grateful. It

25 would be less complicated.

Page 402

1 MR. KRSNIK: [Interpretation] Thank you for your understanding,

2 Your Honour.

3 JUDGE WALD: All right. Madam Registrar will you -- we're simply

4 going to read Count 5 in its present form and then ask the accused

5 Mr. Martinovic how he pleads to that count.

6 Is that satisfactory to you, Mr. Seric.

7 MR. SERIC: [Interpretation] Your Honour, absolutely. We can

8 proceed with the plea.

9 JUDGE WALD: Madam Registrar, will you read -- yes, what --

10 MR. KRSNIK: [Interpretation] Your Honour, my apologies. I just

11 wanted to request a brief recess, maybe five or ten minutes, so that I can

12 have an opportunity to discuss this matter with my client another time.

13 JUDGE WALD: Let me ask you one question. Does your client now

14 have a copy of the amended Count 5 in his native language? Does he now

15 have one in hand?

16 Registrar, do we have a copy we can give him?

17 THE REGISTRAR: Yes, we do have a copy.

18 JUDGE WALD: Will you see that he gets one during the five-minute

19 recess.

20 Before we take that five-minute recess, let me just -- and then

21 when you come back, then I will take Mr. Martinovic's plea too. So if any

22 chance you've changed your mind, we can get them together.

23 Before I do that, I have one last part of the required protocol

24 here and that is to ask both of the accused whether they have anything to

25 complain about about the conditions of their detention. I think we'll get

Page 403

1 that out of the way.

2 Mr. Naletilic? Okay. I take that to be a negative.

3 Mr. Martinovic?

4 THE ACCUSED MARTINOVIC: [Interpretation] I would have a couple of

5 objections, Your Honour. Everything seems to be going in the direction of

6 starting a trial before trial because it has approved of interviewing

7 witnesses including those witnesses who would be interviewed without my

8 presence, especially if we take into account where some of the witnesses

9 are coming from, from prisons, from hospitals, and the Prosecution knows

10 this fully well.

11 I'm surprised why the Prosecution does not state the position on

12 these witnesses that they intend to interview without my presence and

13 without the presence of this Trial Chamber.

14 Also, I would like to point out that I have been -- I have not

15 been given the right for an adequate defence. I cannot keep in touch with

16 him unless he comes here physically. So I have a problem with the phone

17 communication and other forms of communication, and I would like some

18 answer to that question too. Thank you.

19 JUDGE WALD: All right. I have made a note of your objections and

20 perhaps we can -- I can confer or we can find out from your counsel what

21 problems you're having in communication with him.

22 As to your first objection, I think that it is within the Rules of

23 the Tribunal, in fact it's encouraged to try to get some of these things

24 such as depositions done quickly. And the whole business, if they are

25 approved by the Appeals Court, whether or not you will be present there is

Page 404

1 something which is the subject of negotiation which if it doesn't turn out

2 satisfactory for you, you will still have your chance to put forward your

3 objections. So thank you.

4 All right. Is a ten-minute recess sufficient for you,

5 Mr. Krsnik? Is ten minutes sufficient for you?

6 MR. KRSNIK: [Interpretation] Yes, Your Honour.

7 JUDGE WALD: All right. We'll come back at 5.15. I'm sorry,

8 5.25.

9 Yes, Mr. Seric.

10 MR. SERIC: [Interpretation] Your Honour, my apologies. With your

11 permission, I would just like to clarify the position of my client

12 regarding these two issues. Thank you.

13 He is quite unhappy personally with the course of the proceedings

14 so far. After we have told him about the decision of the Prosecution

15 which was supported by the Trial Chamber's ruling to take the

16 deposition -- of taking depositions, the transcripts, and Rule 71 and

17 94 ter despite the objections of the Defence, he again wanted to voice his

18 concern about this situation and what in his perception is a development

19 of the trial before the trial has started. This is why he is saying that

20 the trial has started before the trial, and this is a matter of concern

21 for him because he trusts this Trial Chamber very much.

22 Also, he has objections to the witnesses that appeared on the

23 witness list, of taking their depositions outside of the trial, because he

24 feels that these witnesses would provide different statements in the

25 courtroom and he feels that the Prosecution may have certain fears in

Page 405

1 bringing them to the Trial Chamber to face the accused. So he believes

2 that this violates his right for an adequate defence, and this is what he

3 is voicing as an objection.

4 I also want to point out the problems that we are facing in

5 putting together the Defence team. If the decision on taking depositions

6 is upheld and this evidence is put on an equal footing with the evidence

7 produced in the courtroom, then we have to reopen the issue on the

8 cross-examination and this is going to bring about a situation where I

9 will not be able to fully discharge all these duties.

10 We were talking about a deadline for the preliminary motions for

11 the new charge. We would also like to ask that we also discuss a

12 possibility of getting a co-counsel for our client.

13 As far as the telephone conversations are concerned, to just add

14 that last issue, I indeed am prevented from having direct phone

15 conversations with my client.

16 Thank you, Your Honour, for allowing me to further clarify these

17 two issues.

18 JUDGE WALD: All right. I fully understand you and your client's

19 objections, and I'm sure that you have adequately put them. They are

20 precisely the objections you have raised to us before the Appeals

21 Chamber. I am also aware that, of course, the Registry makes decisions on

22 the allocation of counsel. I'm aware you're in correspondence with them,

23 and depending on the way the deposition decision comes out and when a

24 specific date is set for trial, I'm sure those will be factors that will

25 be considered in your pleas for more help.

Page 406

1 It's now twenty after, so shall we say at half past we'll

2 reassemble.

3 --- Recess taken at 5.18 p.m.

4 --- On resuming at 5.32 p.m.

5 JUDGE RODRIGUES: [Interpretation] Well, I'll use this opportunity

6 to greet all the parties, all the people present in the courtroom.

7 I give the floor to Judge Wald, who was finishing her part of the

8 work so that she may continue before we have the Pre-Trial Conference.

9 You have the floor, Judge Wald.

10 JUDGE WALD: Thank you, Mr. President.

11 Mr. Krsnik, do you have some information about your client's

12 disposal to share with us? Go ahead.

13 MR. KRSNIK: [Interpretation] Good day, Your Honours. Allow me to

14 introduce myself. I'm attorney Krsnik, Defence counsel for Mr. Naletilic,

15 and I am a member of the Croatian Bar Association.

16 Your Honour, I have clarified all these issues with my client. My

17 client was upset because he felt that some of his rights had been

18 violated. Since we have clarified the situation, my client now agrees to

19 plead to the amended indictment.

20 JUDGE WALD: Thank you very much, Mr. Krsnik.

21 In that case, Madam Registrar, will you read the amended Count 5.

22 THE REGISTRAR: Yes, Judge Wald.

23 Mladen Naletilic and Vinko Martinovic committed:

24 Count 5: Unlawful labour, a violation of the laws or customs of

25 war, under Statute Article 3, as recognised by Article 51 of Geneva

Page 407

1 Convention IV and Articles 49, 50, and 52 of Geneva Convention III, and

2 Statute Articles 7(1) and 7(3).

3 JUDGE WALD: How do you plead to Count 5, Mr. Naletilic; guilty or

4 not guilty?

5 THE ACCUSED NALETILIC: [Interpretation] Your Honours, I am not

6 guilty.

7 JUDGE WALD: We have duly recorded your plea, Mr. Naletilic.

8 Thank you.

9 Mr. Martinovic, how do you plead to that count?

10 THE ACCUSED MARTINOVIC: [Interpretation] I am not guilty, Your

11 Honours.

12 JUDGE WALD: All right. We have duly recorded your pleas. As I

13 noted before, that does entitle your counsel, in conjunction with you, 30

14 days in which to make any motions which are relevant to that new

15 additional count.

16 You may sit down. Thank you.

17 We will at this point continue with the third phase of our

18 proceedings, the Pre-Trial Conference, in which all members of the Bench

19 are present.

20 Mr. President.

21 --- Whereupon the Status Conference adjourned at

22 5.35 p.m., to be followed by a Pre-Trial Conference




Page 408


2 [Pre-Trial Conference]

3 [The accused present in courtroom]

4 [Open session]

5 --- Upon commencing at 5.35 p.m.

6 JUDGE RODRIGUES: [Interpretation] Yes, thank you, Judge Wald.

7 It is true to say that we are here today now to hold the Pre-Trial

8 Conference. Therefore, the actual objective of us being here is to

9 ascertain whether the various requirements, as expressed in 65 ter, have

10 been met so that we can conclude that the case is ready for trial.

11 I think that the time has now come for Judge Wald, who has been

12 the Pre-Trial Judge in this case, to relate to us what the situation is

13 right now. So I give you the floor again, Judge Wald, for you to report

14 on this. Thank you.

15 JUDGE WALD: Thank you, Mr. President.

16 What I will do is, in five to seven minutes, summarise everything

17 that has happened in the pre-trial phase of this proceeding.

18 The Chamber is well aware that there are still some things which

19 have yet to be decided between now and the time that the trial begins, and

20 we have talked about those and they are on track and will be duly decided

21 when the appropriate time comes after the appeals have come down.

22 I hope this won't be too boring for all of those who have been

23 here through all of the various stages, but Rule 73, I think, suggests

24 that it is wise to put in the transcript an account of what has happened

25 during the pre-trial phase, and I've made it as brief as I think the

Page 409

1 parties can tolerate.

2 The indictment in this case was filed on the 18th of December,

3 1998 and confirmed on the 21st of December, by Judge Richard May.

4 Messrs. Naletilic and Martinovic are charged with five counts of

5 crimes against humanity, eight counts of grave breaches of the Geneva

6 Conventions, nine counts of violations of the laws and customs of war, for

7 their roles in the events in and around the city of Mostar, in

8 Bosnia-Herzegovina, in the years 1993 and 1994.

9 The Prosecutor has filed an amended Count 5 to the indictment on

10 the 4th of December 2000 and pleas have just been taken of not guilty to

11 that amendment.

12 Mr. Martinovic was transferred to the UN Detention Unit from

13 Croatia on the 9th of August, 1999, pleaded not guilty at his initial

14 appearance on the 12th of August, 1999. Mr. Naletilic was transferred to

15 The Hague from Croatia on the 21st of March, 2000, pleaded not guilty on

16 the March 24, 2000.

17 I was appointed as Pre-Trial Judge in this matter pursuant to an

18 order dated the 24th of November, 1999.

19 Status Conferences were held in this case on the 14th of

20 September, 2000; the 20th the of July, 2000; the 16th of the May, 2000;

21 the 3rd of February, 2000; and 20th of October, 1999.

22 Throughout these Status Conferences, I worked with the parties to

23 attempt to ensure that pre-trial discovery was completed in a timely

24 fashion and I believe that has been done, with the remaining statements to

25 be submitted by the end of January.

Page 410

1 THE INTERPRETER: Could it be read a bit more slowly for the

2 interpreters. We apologise. Thank you.

3 JUDGE WALD: In addition, throughout the pre-trial phase I

4 repeatedly pushed the parties to narrow the facts in dispute, to reduce

5 the number of potential witnesses where possible, and to consider

6 alternative procedures such as affidavits, depositions, judicial notice

7 where appropriate to shorten the eventual trial.

8 Prior to the July 2000 Status Conference, the parties were asked

9 to submit certain preliminary filings. Each accused was asked to file an

10 annotated copy of the indictment in which the words or sentences that he

11 intended to dispute were highlighted along with a brief explanation of why

12 the highlighted portions would be disputed. Both of the accused complied

13 with this order. Mr. Martinovic omitted several paragraphs in the

14 indictment. Mr. Naletilic indicated that he had disputed everything

15 except his name and personal information.

16 For the July Status Conference, the Prosecution was asked to

17 submit a chart indicating the facts it intends to prove in support of each

18 count of the indictment and which witnesses would testify to those facts.

19 The Prosecution responded with a detailed finding on the 8th of July

20 listing 108 potential witnesses and the subjects on which they might

21 testify, emphasising, however, that the Prosecution did not necessarily

22 intend to call all 108 but more likely some 60 to 70 witnesses. The

23 Prosecution also filed a list of facts which fleshed out the factual

24 allegations in the indictment with 192 specific facts that it intended to

25 prove at trial.

Page 411

1 After the July Status Conference and pursuant to my direction, the

2 Prosecution reviewed these filings with the Defence counsel. The result

3 was the Prosecution's first filing of list of facts in dispute and facts

4 not in dispute dated the 27th of July.

5 Mr. Martinovic's counsel agreed with the facts contained in

6 paragraphs 1 to 6, 11 to 21, 68 to 70, 86 to 88, 91, 92, 142, and 158 of

7 this list of facts. These paragraphs are primarily concerned with the

8 background of the conflict. In his reply to the Prosecutor's October

9 filings, Mr. Martinovic states that as the matter progresses, he may

10 indicate other facts in the indictment as not being in dispute.

11 Mr. Naletilic's counsel indicated his intends to dispute all the

12 facts other than his identity, including background facts. In his reply

13 to the Prosecutor's October filings, Mr. Naletilic states that he

14 maintains his opposition to all facts in the indictment apart from his

15 name and personal data.

16 At the September Status Conference, I asked the Prosecution to

17 consider filing a motion for judicial notice to further reduce the number

18 of facts in dispute. Also at the September conference I noted that the

19 Prosecution's list of potential witnesses included a lot of redundancies;

20 in one instance, 73 witnesses identified as potentially testifying about

21 one paragraph of the indictment.

22 I asked the Prosecutor to consider ways of reducing the total

23 number of witnesses or limiting the total amount of time allowed for the

24 Prosecution's case-in-chief, including depositions before a presiding

25 officer pursuant to Rule 71 and submission of affidavits pursuant to

Page 412

1 Rule 94 ter.

2 Mr. Martinovic filed a motion alleging defects in the form of the

3 indictment pursuant to Rule 72(A) on October 4, 1999. After hearing oral

4 argument, the Trial Chamber rejected the motion in an order dated the

5 15th of February, 2000. Mr. Naletilic likewise filed a motion challenging

6 the form of the indictment on the 20th of April, 2000, which the Chamber

7 rejected on 11th of May.

8 Protective measures. On the 12th of November, 1999, Trial

9 Chamber I issued an order granting protective measures for prospective

10 Prosecution witnesses which provided inter alia that one, the Defence

11 should not disclose the names or identifying information of potential

12 Prosecution witnesses or evidence received from the Prosecution to anyone

13 unless it was necessary to prepare its case; two, the Defence should keep

14 a log of any such disclosures; and three, any member of the Defence team

15 who withdrew from the case should return confidential materials.

16 On the 4th of February 2000, the Trial Chamber granted additional

17 protective measures with the consent of the parties, requiring each side

18 to provide written notice to the other before contacting opposing

19 witnesses and stating that Prosecution witnesses could request to have a

20 representative of the Prosecution present at meetings with Defence counsel

21 and vice versa.

22 On the 27th of March, all protective measures previously applied

23 to Mr. Martinovic were extended to Mr. Naletilic.

24 Medical examination. On the 18th of the April, in respect to a

25 request of the Defence of Mr. Naletilic, the Trial Chamber ordered expert

Page 413

1 medical and psychological exams of the accused be conducted to determine

2 his physical and mental capacity to attend and participate in trial.

3 These experts found Mr. Naletilic physically and mentally able to stand

4 trial.

5 Assignment of counsel. After various orders granting temporary

6 assignment of counsel, the Registry issued an order permanently appointing

7 Mr. Seric as counsel on the 23rd of June, 2000. On the 18th of

8 October, 2000, the Registry issued an order permanently appointing

9 Mr. Krsnik as counsel to Mr. Naletilic. Affidavits. The Prosecution

10 filed a motion on the 14th of March, 2000 proposing that its own

11 investigators be allowed to formalise witness statements which would then

12 be admitted into evidence under

13 Rule 94 ter. The Trial Chamber rejected this motion in an order dated

14 22nd of June, ruling that the proposed procedure was not in accordance

15 with the law of Bosnia-Herzegovina and therefore didn't comport with

16 Rule 94 ter. The Trial Chamber directed the parties to work with the

17 government of Bosnia-Herzegovina to work out an acceptable procedure.

18 On the 11th of October, the Prosecutor filed an amended motion

19 regarding 94 ter statements in which it proposed that statements be taken

20 by a BiH, by a Bosnia-Herzegovina, investigating judge in Sarajevo but

21 that instead of being summoned by BiH officials the witnesses could be

22 transported to Sarajevo by the ICTY Victims and Witnesses Section. In

23 addition, the statements could be taken in the ICTY Sarajevo field office

24 if the identity of the witness and the confidentiality of their statements

25 could not be guaranteed in Sarajevo court facilities but still before an

Page 414

1 investigating judge. The Trial Chamber granted this motion in a decision

2 dated the 10th of November.

3 Depositions. On the 11th of October, the Prosecutor also filed a

4 motion proposing that depositions being taken for 23 named witnesses. In

5 a decision on the 10th of November the Trial Chamber granted the motion.

6 The questions of whether the depositions will take place, the question of

7 the presence of the accused is to be decided after further consultation

8 between the parties, the Presiding Officer, and the Registry.

9 On the 16th of November, Mr. Naletilic appealed against the Trial

10 Chamber's decision to grant the Prosecutor's motion on depositions, and on

11 the 17th of November, Mr. Martinovic gave notice of joining the appeal.

12 The amendment of the indictment. On the 11th of October, the

13 Prosecutor filed a motion to amend Count 5 dealing with unlawful labour by

14 adding a reference to Article 52 of Geneva Convention III which prohibits

15 dangerous and humiliating labour.

16 By decision dated 28th of November, the motion to amend the

17 indictment was granted. In the course of its decision, the Trial Chamber

18 found the amendment constituted a new charge and ordered each of the

19 accused enter a plea to the new charge at today's Pre-Trial Conference

20 which both of the accused have just done.

21 Admission of transcripts. The Prosecutor filed a motion, also

22 dated the 11th of October, seeking to admit transcripts and exhibits of

23 certain witness testimony in the Blaskic and Kordic cases, arguing they

24 were relevant to certain issues in the present case, namely, whether there

25 was an international armed conflict, the application of grave breach

Page 415

1 provisions, and whether there was a systematic or widespread attack. By

2 decision dated 27th, the Chamber granted the motion and an appeal has been

3 taken by both defendants from that decision.

4 By a motion dated 12th of October, Mr. Naletilic filed a formal

5 request for interrogation under a polygraph in accordance with written

6 instructions. In a decision dated 27th, the Trial Chamber rejected the

7 request.

8 Rule 65 ter filings. The Prosecutor appears to have complied. He

9 has complied, in our opinion, with the requirements of 65 ter and has

10 filed, one, the Prosecutor's list of witnesses pursuant to 65 ter (E)(iv)

11 dated 11th October, the Prosecutor's pre-trial brief pursuant to 65 ter

12 (E)(i) dated 11th of the October, the Prosecutor's list of exhibits

13 pursuant to Rule 65 ter (D)(v) and the book of authorities.

14 Now, the Prosecutor did not file a statement of admissions by the

15 parties or a statement of uncontested parties pursuant to Rule 65 ter as

16 these matters had already been addressed in the list of facts previously

17 filed by him on the 18th of July.

18 And finally, counsel for both accused have complied with the

19 requirements of Rule 65 ter. Mr. Naletilic has filed a pre-trial brief

20 dated the 22nd of November. Mr. Martinovic has filed a pre-trial brief

21 dated the 23rd of November. Any further obligations under 65 ter will

22 arise for the Defence at the close of the Prosecution's case.

23 And that, Mr. President, is the report of the Pre-Trial Judge as

24 to the current status of affairs in this particular case.

25 JUDGE RODRIGUES: [Interpretation] Thank you very much,

Page 416

1 Judge Wald. On behalf of the Chamber, I want to extend our thanks for the

2 very efficient work you have accomplished and also for the short time

3 taken in the pre-trial stage.

4 I want to thank the parties as well for their cooperation and

5 their contribution so that we could reach this stage in the proceedings.

6 We can now conclude that we are aware of the facts of law --

7 points of law and facts which are in dispute and those that are not in

8 dispute. We know that the points of fact and law in dispute will be dealt

9 with at the trial, which is going to be a major trial, I must say. We

10 already have a witness list including all the necessary elements. We've

11 got an exhibit list as well.

12 So this is very much the core of the pre-trial stage for the

13 Prosecution's side, and we'll do the same for the Defence when the time

14 comes. But even now, the Defence have to contribute as well towards the

15 pre-trial stage by stating the type of defence they will invoke and by

16 meeting the various points in the pre-trial brief of the Prosecution by

17 saying which they challenge and why they do so.

18 So here we are. We've got the basics, the essential elements of

19 the pre-trial stage so that we can declare this case ready for trial.

20 However, we must be aware of at least two things, and I believe that

21 Judge Wald, in the part of the conference which took place before already

22 alluded to this. I'm talking about the opening date for the trial. This

23 can only be stated around March. In other words, the Trial Chamber will

24 be in a position to tell you then when the trial is going to start. Now

25 it's not possible to do so because if the Chamber were to give you a date,

Page 417

1 it would not be a date that could be relied upon.

2 So this is what we can say right now. We can say that towards the

3 month of March, the Trial Chamber will tell the parties when the trial can

4 start.

5 There was another thing to take into account. It was as follows:

6 We probably will have to have another conference before the trial starts.

7 Towards March we could be in a position to tell you when the trial begins

8 and also when we're going to have this next Pre-Trial Conference, because

9 you know, things keep changing. It has been said before, you know, there

10 is a dynamics to these trials. Of course, we try to give it some

11 stability because we need to organise our work, but more often than not

12 there are little things that crop up and are such that we have to change

13 course.

14 However, I don't want to go any further than this. I can't do it

15 anyway because I can't tell you whether it is this Chamber which will be

16 seized of this trial. It could well be that there is another Bench,

17 another Trial Chamber. Judge Wald told you that the Security Council has

18 approved a proposal made by this Tribunal aiming at having ad litem

19 Judges. It could be that another Trial Chamber will start the trial.

20 That's why I'd like to tell you a little more so that you know how

21 we're going to organise our work. It is the Trial Chamber's practice to

22 specify the scheduling of the trial, but we're not able to do so because

23 we don't have any date as yet. But there are various indicators that are

24 needed in order to organise the work of the courtroom, the use of the

25 courtroom, and also the time of the parties. It would be useful to convey

Page 418

1 all this to you but we are not in a position to do so.

2 So there will be a meeting in which we will mention all these

3 issues, and we will hold this meeting as long as it is the same Chamber.

4 But there may be another Trial Chamber which will be dealing with the

5 trial, and that Chamber will work accordingly.

6 I believe I don't have anything else to say. I know that Judge

7 Wald has already completed that part of the pre-trial work. She has given

8 the accused the opportunity to express themselves.

9 I'd like to know of the parties whether they have anything to

10 add. Just for the record, Mr. Scott.

11 MR. SCOTT: May it please the Court. No, except that in the time

12 I've been associated with the case, if I can be allowed to say, Judge Wald

13 has conducted these proceedings very efficiently in moving the parties to

14 the maximum amount of preparation at this stage. Thank you.

15 JUDGE RODRIGUES: [Interpretation] Thank you very much.

16 Mr. Krsnik.

17 MR. KRSNIK: [Interpretation] The Defence of Mr. Mladen Naletilic

18 is also very satisfied with our cooperation with Her Honour Judge Wald,

19 and we have nothing of importance to add now.

20 JUDGE RODRIGUES: [Interpretation] Very well. Thank you.

21 Mr. Seric.

22 MR. SERIC: [Interpretation] Your Honours, I will not take up your

23 time. I wish to join my colleague, Mr. Krsnik, and my learned friends and

24 to express my client's gratitude for Judge Wald's patience and

25 efficiency.

Page 419

1 JUDGE RODRIGUES: [Interpretation] Well, I think I can include our

2 thanks, Judge Riad's and mine, to extend our congratulations and

3 heart-felt thanks to Judge Wald. But you will see that the Trial Chamber

4 will be a good team if this is the Trial Chamber in charge of this trial.

5 Let me use this opportunity to wish you a happy -- a very Merry

6 Christmas. Of course, depending on which Christmas you celebrate, it will

7 be on the 25th of December; for others it will be on the 7th of January.

8 And for those who don't celebrate Christmas, they will celebrate the new

9 year. So to anybody who wishes to celebrate, I wish them a very festive

10 season, a Merry Christmas and a Happy New Year, and we'll meet again next

11 year.

12 Judge Wald, please.

13 JUDGE WALD: I would just like to add my thanks to counsel for

14 both sides, the Prosecution, the Defence, and to the accused, for making

15 these Status and Pre-Trial Conferences move along as quickly as they did.

16 Thank you.

17 JUDGE RODRIGUES: [Interpretation] The hearing stands adjourned.

18 Have a good holiday and work well. Bye-bye.

19 --- Whereupon the Pre-Trial Conference adjourned at

20 6.00 p.m.